ITIL intellectual property

OGC recently published a brochure describing their intellectual property rights over ITIL. Please do not rely on that document to guide your decisions on usage of ITIL.

The brochure is not legal advice. Nor is this blog. I strongly recommend you seek legal advice from a competent international intellectual property lawyer, as I have done.

Here are some points for you to discuss.

A trade mark or "word mark" does not constrain your usage of that word. It only constrains your ability to purport to be part of the same product or to make your product look similar. In other words you can talk about ITIL all you want: you just cannot suggest or imply that your product is part of ITIL. So long as you use the trademark to identify the trademark owner and you do not use it to mislead or deceive especially about the origin or nature of your product then that usage is generally defensible.

A word mark does not automatically prevent you from using that word even in the name of a product, so long as you are talking about their brand, not implying that your product is part of their brand. If you title a book "The Endless Bountiful Benefits of Using ITIL" you probably are OK. If you call it "ITIL Handbook" you probably are not. If you call a website "Discussion of ITIL" you are probably OK, if you call it "The ITIL Community" possibly not.

Logos and other marks ("trade dress" such as colours) are another fuzzy area. Obviously you can't just slap the TSO logo all over your bookshop as one crowd did, notr can you use the OGC swirl shape. But how different does a shape have to be before it isn't a swirl? I've seen a square one. You probably can't be prevented from putting x-rays of plants on the front cover of all your books if you wanted to.

The words in ITIL books are copyright. The concepts are not (that would require a patent).

Most people understand the limits copyright places on using extracts from a work, under the terms of "fair use". You may use extracts from ITIL as from any copyright work.

There is a grey area around just how much one can write about ITIL in one's own words before one infringes on copyright, on the "essense" of the work. Nor can phrases in common use such as Incident Management be copyrighted.

There is also the small matter of the mysterious 1.1.1. The ITIL V2 books were originally published with the words "ITIL has been publicly available. This means that any organisation can use the framework described by OGC in its numerous books." The V3 books still have section 1.2.2 with the title "Good practice in the public domain" which refers to "publicly available frameworks such as ITIL". One could amuse many lawyers for a long time arguing whether the "essense" of ITIL has already been placed in the public domain, which then leaves only the specific wording as copyright.

The issue becomes even more difficult when one is teaching about ITIL. It is even more grey to what extent copyright prevents one from teaching about a copyrighted work. And to teach about ITIL may or may not infringe trademark. If you are in this position you need some seriously good legal advice, but the final answer may only come in court.

Parody and satire opens the field even further. Intellectual property law is not intended to restrain satirical discussion about a subject, such as "IT'IL end in tears".

Possibly one could seek damages if one could show that an intellectual property action was brought vexatiously with the sole intent of restraint of trade. In other words so long as you remain within the law, OGC must be careful not to threaten you with their IP rights solely to try to enforce a monopolistic control over the ITIL industry, for example training. They can require you to be accredited before your students can sit the exams (as is the case in all courses other than Foundation). Whether they can stop you teaching ITIL to students who don't want certification so as to protect the market of the ATOs is entirely another matter.

In summary, intellectual property rights are there to protect the creations of others, not to prevent you from having your own.

Let me stress again, this post is the words of an unqualified amateur - you must seek professional legal advice. You will find it far more enlightening than the OGC brochure.